Aus Asia Minerals Ltd v Ball

[2015] WASCA 251

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Statutory demand
4. › Application to set aside
5. › Extension of time for compliance pending appeal
6. › Factors to be considered
7. › Prospects of success
8. › Whether appeal rendered nugatory
9. › Prejudice to parties
10. › Corporations Act 2001 (Cth), s 459F(2)(a)(i)
1. Corporations
2. › Winding up
3. › Statutory demand
4. › Application to set aside
5. › Appeal from dismissal
6. › Security for costs
7. › Whether company appellant is 'plaintiff' or 'defender' of litigation
8. › Whether defender principle applies on appeal
9. › Corporations Act 2001 (Cth), s 1335(1)
1. Practice and Procedure
2. › Security for costs
3. › Corporate appellant
4. › Appeal against dismissal of application to set aside statutory demand
5. › Whether company is defender of litigation constituted by appeal proceedings
6. › Corporations Act 2001 (Cth), s 1335(1)

Quick Take

A company that has lost its application to set aside a creditor's statutory demand and appeals that decision is not properly characterised as a 'defender' of the litigation for the purposes of resisting an application for security for costs under s 1335(1) of the Corporations Act 2001 (Cth). The principle that security will not ordinarily be ordered against a party genuinely defending litigation is inapplicable where the issue has been resolved at first instance against the company and the company is instituting the appeal.